Heard: May 8, 2018.
found and returned in the Superior Court Department on April
1, 2016. A pretrial motion to suppress evidence was heard by
Robert B. Gordon, J.
application for leave to prosecute an interlocutory appeal
was allowed by Geraldine S. Hines, J., in the
Supreme Judicial Court for the county of Suffolk, and the
appeal was reported by her to the Appeals Court.
M. Campbell, Assistant District Attorney (Caitlin Fitzgerald,
Assistant District Attorney, also present) for the
Michael L. Tumposky for the defendant.
Present: Sullivan, Neyman, & Englander, JJ.
case presents the question whether the police unreasonably
delayed obtaining a warrant to search the contents of
cellular telephones (second warrant), where those cell phones
had already been properly seized pursuant to a lawful first
warrant and were being held as evidence pending trial. A
Superior Court judge held that the delay in seeking the
second warrant was unreasonable under Commonwealth v.
White, 475 Mass. 583 (2016), and suppressed the fruits
of the search conducted pursuant to the second warrant. We
reverse, concluding that the delay in seeking the second
warrant was not unreasonable, where the cell phones were
already lawfully in police custody and were reasonably
expected to remain so until trial.
December 15, 2015, the defendant and two accomplices, Richie
Williams and Keyarn Richardson, participated in a coordinated
attack on a home at 7 Morse Street in the Dorchester section
of Boston. Much of the attack was witnessed by various Boston
police officers, who were in the area at the time. At
approximately 4:30 P.M. two cars drove onto Brinsley Street,
one street away from and parallel to the block of 7 Morse
Street. The defendant was driving one of the cars and was
alone. Williams was driving the other car, with Richardson in
the front passenger seat. Both cars parked on Brinsley
Street, facing in the same direction.
after parking, Williams and Richardson got out of their car
(leaving the engine running), walked briskly down Brinsley
Street, and turned onto Ronald Street (a cross street),
heading in the direction of Morse Street. Shortly thereafter,
Richardson was observed stepping behind a Dumpster, taking
out a firearm, and "chamber[ing] a round into the
firearm." He thereafter was observed on Morse Street
handing a firearm to Williams.
same time that Williams and Richardson were walking toward
Morse Street, the defendant got out of his car on Brinsley
Street and began peering through the yards toward the area of
7 Morse Street "as if he was waiting to see something
thereafter, shots were heard coming from Morse Street.
Williams and Richardson then were observed running down Morse
Street, with Williams holding a gun in his hand. Police
officers ordered them to stop, but Williams continued running
to Brinsley Street and, after discarding his firearm, got
into the passenger seat of the defendant's car. The
defendant had, by this time, returned to his car, but before
he could drive away with Williams they were stopped and
arrested by the police. Later, the police confirmed that
multiple bullets had been fired into the home at 7 Morse
Street, although no one had been injured.
officer on the scene observed two cell phones in the
defendant's car -- one on the driver's seat and one
on the front passenger's seat. The officer observed three
cell phones in the car initially driven by Williams -- two on
the driver's seat ...